Schmanke v. US Bureau of Prisons

• Citation: 847 F. Supp. 134
• Decision Date: 08 March 1994
• Docket Number: Civ. No. 5-93-157.
• Parties: Mark W. SCHMANKE, # XXXXX-XXX, Petitioner, v. UNITED STATES BUREAU OF PRISONS, Respondent.
• Court: U.S. District Court — District of Minnesota

847 F. Supp. 134

Mark W. SCHMANKE, # XXXXX-XXX, Petitioner, v. UNITED STATES BUREAU OF PRISONS, Respondent.

Civ. No. 5-93-157.

United States District Court, D. Minnesota, Fifth Division.

March 8, 1994.

Mark W. Schmanke, pro se.

Andrew Luger, Asst. U.S. Atty., Minneapolis, MN, for respondent.

ORDER AND REPORT AND RECOMMENDATION

MAGNUSON, District Judge.

This matter is before the Court upon Magistrate Judge Raymond L. Erickson's Report and Recommendation, dated February 22, 1994. No objections have been filed to that Report and Recommendation during the time permitted for objections. Based on a review of the record and the submissions of the parties, the Court ADOPTS the Report and Recommendation.

Accordingly, IT IS HEREBY ORDERED THAT:

Respondent shall, immediately and without delay, credit the time the Petitioner served from May 28 to August 17, 1987 to his current Federal sentence.

LET JUDGMENT BE ENTERED ACCORDINGLY.

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon a Petition for a Writ of Habeas Corpus, see, Title 28 U.S.C. § 2241,¹ which alleges that the Respondent has failed to credit the Petitioner's Federal sentence for the 82 days that he had spent in Federal custody while awaiting a trial on the Federal charges for which his conviction was ultimately rendered.²

The Petitioner has appeared pro se, in forma pauperis, and the Respondent has appeared by Andrew M. Luger, Assistant United States Attorney.

For reasons which follow, we recommend that the Petition for a Writ of Habeas Corpus be granted.

II. Factual and Procedural Background

The Petitioner is presently in the custody of the United States Bureau of Prisons and is serving a 20-year sentence that was imposed on February 22, 1988, as a result of the Petitioner's conviction for conspiring to alter and cash postal money orders in violation of Title 18 U.S.C. §§ 371 and 500; for mail fraud in violation of Title 18 U.S.C. § 1341; and for wire fraud in violation of Title 18 U.S.C. § 1343.³ See, United States v. Weaver, 882 F.2d 1128 (7th Cir.1989), cert. denied sub nom. Schmanke v. United States, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Schmanke, 933 F.2d 1012 (7th Cir.1991). Notably, these violations occurred during the period from March of 1982 through December of 1983, while the Petitioner was incarcerated at the Indiana State Prison in Michigan City, Indiana, serving two State Court sentences for burglary and for attempted theft.⁴

After the Federal authorities had uncovered the conspiracy, the Petitioner was indicted by a Federal Grand Jury, and a Writ of Habeas Corpus ad prosequendum⁵ was issued by the United States District Court for the Northern District of Indiana. Pursuant to that Writ, on May 28, 1987, the Petitioner was transferred by the United States Marshal from the Michigan City penitentiary, to a Federal holding facility at the Metropolitan Correctional Center in Chicago, Illinois.

On August 17, 1987, while the Petitioner was in Federal custody awaiting trial on his Federal charges, his last remaining State Court sentence expired.⁶ Thereafter, the Petitioner remained in Federal custody and, on February 22, 1988, he was sentenced, following his trial and conviction, by the United States District Court for the Northern District of Indiana, to a total term of 20 years.

As here pertinent, the Petitioner had pursued post-conviction relief, while in Federal custody, as to each of his State Court sentences. With respect to the sentence that he was serving on August 17, 1987—when he was transferred to the United States Marshal for the processing of his Federal charges — the Petitioner's efforts resulted in the dismissal of that State Court action by Order dated March 18, 1991. Although the Petitioner has been credited for his time in Federal custody that followed the expiration of his State Court sentence on August 17, 1987, he here petitions for an additional 82 days of jail credit towards his current Federal sentence. The 82-days relate to the period of time during which the Petitioner was in the keeping of the United States Marshal; i.e., from May 28, 1987 to August 17, 1987.

Having exhausted his administrative remedies, the Petitioner brought this action, pursuant to Title 28 U.S.C. § 2241, arguing that he has unlawfully been denied credit against his Federal sentence for the period in question.

III. Discussion

To the extent disclosed by our research, this would appear to be a case of first impression.⁷ Unfortunately for the Petitioner, two firmly entrenched lines of authority counsel against — but do not bar — the relief that he requests. Our analysis commences, where it logically must, with the language of Title 18 U.S.C. § 3568.

Section 3568⁸ provides, in relevant part, as follows:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

* * * * * *

If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.

Relying upon the language which authorizes credit "for any days spent in custody in connection with the offense or acts for which sentence was imposed," the Petitioner argues that he was in Federal custody, pursuant to a Writ of ad prosequendum, during the entire period for which he now seeks credit.

There is a wealth of authority, however, which holds that a State prisoner is not "in custody" — within the meaning of Section 3568 — when he appears in Federal Court pursuant to a Writ of Habeas Corpus ad prosequendum. See, McIntyre v. United States, 508 F.2d 403, 404 (8th Cir.), cert. denied, 422 U.S. 1010, 95 S.Ct. 2634, 45 L.Ed.2d 673 (1975); Derengowski v. United States Attorney General, 457 F.2d 812, 812-13 (8th Cir.1972); see also, Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir.1992); Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir.1991); Flick v. Blevins, 887 F.2d 778, 782 (7th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2179, 109 L.Ed.2d 508 (1990); Hernandez v. United States Attorney General, 689 F.2d 915, 918-19 (10th Cir.1982); Roche v. Sizer, 675 F.2d 507, 510 (2nd Cir.1982); Crawford v. Jackson, 589 F.2d 693, 695 (D.C.Cir.1978), cert. denied, 441 U.S. 934, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); Vignera v. United States Attorney General, 455 F.2d 637, 637-38 (5th Cir.1972). The reasoning of these cases, however, renders them distinguishable.

As the decisions of this Circuit make clear, the purpose of denying Federal sentence credit when a State prisoner is "on loan" pursuant to a Writ of ad prosequendum is to preclude any potential that the prisoner would receive "double credit," i.e., credit against his State sentence and credit against any Federal sentence, for the same period of time. See, McIntyre v. United States, supra at 404; Brown v. United States, supra at 1037 n. 1; Derengowski v. United States, supra at 812-13. Such a result could not occur here, as the Petitioner's State sentence was subsequently nullified.⁹

A second line of authority also challenges the propriety of the credit the Petitioner requests. According to these decisions, a prisoner may be denied credit against a Federal sentence for the time that was served on a State sentence that subsequently was invalidated. In a recurrent scenario, a prisoner is not released to commence his Federal sentence because of his obligation to complete a State sentence which, subsequently, is found to be invalid. In such a circumstance, with near uniformity, the Courts have held that the prisoner may not "bank" the time served on an invalid sentence to credit against a valid, subsequent sentence imposed for a totally unrelated crime. See, e.g., Bagley v. Rogerson, 5 F.3d 325, 329-30 (8th Cir.1993), citing Holscher v. Young, 440 F.2d 1283, 1290 (8th Cir.1971); Meagher v. Clark, 943 F.2d 1277, 1280 (11th Cir.1991); Pinaud v. James, 851 F.2d 27, 31 (2d Cir.1988); Scott v. United States, 434 F.2d 11, 21 (5th Cir.1970); Green v. United States, 334 F.2d 733, 736 (1st Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Holleman v. United States, 612 F.Supp. 384, 386 (N.D.Ind.1985); Glover v. North Carolina, 301 F.Supp. 364, 368 (E.D.N.C.1969). Accordingly, if the Petitioner's argument was restricted to merely a crediting of his invalid State time to his Federal sentence, his claim would be denied.¹⁰ This is not his claim, however.

Properly phrased, the Petitioner is arguing that, during the period from May 28 through August 17, 1987, the only basis for his confinement, which could have been legitimate, was the Federal Writ of ad prosequendum. In a strict sense, it matters not if the Federal confinement was legitimate or unlawful;¹¹ the fact that he was confined solely because of Federal authority—there being no legitimate State sentence to execute—should entitle him, he argues, to Federal credit for that period of confinement. We agree for, under any rational construction of Section 3568, the period served, between May 28 and August 17, 1987, could only be considered as an interval of Federal pretrial confinement; i.e., "days spent in custody in connection with the offense or acts for which sentence was imposed." Title 18 U.S.C. § 3568. We recognize that the invalidity of the State sentence was not known until well after that sentence had been served,...